Discrimination by association update

It was back in 2006 that the Employment Tribunal considered the issue of disability discrimination by association in the case of Coleman v Attridge Law. At that time, whether or not an individual was protected from associative discrimination depended on which piece of discrimination legislation applied. Ms Coleman’s case culminated in a hearing at the European Court of Justice (ECJ) which, in 2008, held that she should be protected from suffering less favourable treatment and harassment because of her association with her disabled son. The Equality Act 2010 reinforced the position and as a result, direct discrimination claims based on association applied to all of the protected characteristics except for marriage and civil partnership.

Truman v Bibi Distribution Ltd

Disability discrimination by association was the issue in dispute in the recent Liverpool Employment Tribunal case of Truman v Bibi Distribution Ltd. Mr Truman started work for Bibi on 14 October 2013 and he was dismissed on 13 October 2014. Until his dismissal, his performance was entirely satisfactory and he had received good appraisals with particularly good scores for customer focus.

His daughter had cystic fibrosis and initially Mr Truman’s wife was the primary carer. After she started her own business, Mr Truman told Bibi that he might have to spend more of his time caring for his daughter. Mr Truman was subsequently dismissed and was told this was because “his heart wasn’t in the business”. The Employment Tribunal had also had sight of a document where a senior manager at Bibi was asked to “gather as much dirt as [he] could” on Mr Truman.

Bibi did not give a satisfactory explanation for Mr Truman’s dismissal and no capability proceedings had been commenced. The Employment Tribunal was also concerned at the timing of the dismissal which it described as “surprising and suspicious”. It was the day before Mr Truman accrued one year’s service and gained rights under Bibi’s Family Leave policy.

The Employment Tribunal came to the view that there was an inference of associative disability discrimination. Bibi had failed to satisfy the burden of proof and to provide an explanation about why it had treated Mr Truman this way. From the circumstances, an inference could be drawn that direct discrimination had occurred and that Mr Truman’s dismissal constituted disability discrimination by association.

CHEZ Razpredelenie Bulgaria (CRB) v Komisia

Far from Liverpool, the ECJ gave a very significant decision recently in the goods and services claim in CHEZ Razpredelenie Bulgaria (CRB)v Komisia.
The ECJ held that an individual could bring a claim for indirect race discrimination under the Race Directive even if they did not share the protected characteristic of the disadvantaged group but, suffered the same disadvantage. This is at odds with section 19 of the Equality Act 2010 which provides that an individual claiming indirect discrimination must have the same protected characteristic as the disadvantaged group.

CRB was an electricity supplier. In a district where the majority of the population were Roma, the electricity meters were installed at a height of between 6-7 metres whereas in other parts of the district the height was 1.7 metres. The reason for the difference, said CRB, was that there was more frequent tampering with the meters and numerous unlawful connections to the electricity network in those districts. Ms Nikolova, who was not of Roma origin, lived in the district with the higher meters. She said that the meters were inaccessible and prevented her from making visual checks to see how much electricity she was using. Further, there was a stigma that inhabitants of her district were more likely to tamper with the meters.

The ECJ considered:

• Whether installation of the higher meters amounted to direct and indirect discrimination on grounds of racial or ethnic origin
• Whether Ms Nikolova could bring a claim of indirect discrimination even though she was not of Roma origin
• What was meant by “particular disadvantage”

The ECJ held that the less favourable treatment arose because of Roma origin. Even though Ms Nikolova was not of Roma origin, it was Roma origin that constituted the factor on the basis of which she considered that she had suffered less favourable treatment or a particular disadvantage. Further, “particular disadvantage” does not mean only significant or particularly serious cases of inequality but rather, that far more people with the protected characteristic are disadvantaged by the practice than people without it. CRB may be able to potentially objectively justify the treatment. It had a legitimate aim to secure the electricity supply and to enable consumers to monitor their consumption but it is for the national court to decide whether the measures adopted by CRB were appropriate and necessary.

This decision is potentially very significant for UK law. The definition of indirect discrimination in section 19 of the Equality Act 2010 is narrower than in the Race Directive (and indeed in the Equal Treatment Directive). Potentially, this could mean that section 19 of the Equality Act 2010 will need to be amended to cover indirect discrimination by association and we will keep you updated on developments.